By Claire Martin and Laura Room, 5th August 2022
This case is another in a long series of court-authorised caesareans, some of which have been previously blogged by Open Justice Court of Protection Project.
In this case, the NHS Trust (Kings College Hospital NHS Foundation Trust, London [KHC], represented by Nageena Khalique QC of Serjeant’s Inn Chambers) had made an urgent application to court seeking authorisation for a planned caesarean section at 37 weeks for a woman with sickle cell disease. The application was supported by the NHS Trust providing mental health care (South London and Maudsley NHS Foundation Trust [SLaM]), the second respondent, also represented by Nageena Khalique.
The protected party at the centre of the case, RO, was represented by Conrad Hallin, also of Serjeant’s Inn, (via her litigation friend, the Official Solicitor). She was also present for some of the hearing and spoke to the judge.
We observed this hearing (COP 1396281T) on Monday 18th July 2022, before HHJ Morgan at the Royal Courts of Justice. We had no idea what the hearing was about in advance, because the RCJ Daily Cause List does not list the issues before the court.
We will start the blog with Claire Martin discussing the issues of capacity and best interests in relation to this case, and then Laura Room will reflect on her experience as a first-time observer and consider mental health diagnoses that have been given to RO.
Background to the case
RO is a 24-year-old woman who is 36 weeks pregnant. Her due date is the beginning of August – around four weeks’ away at the time of the hearing. She is currently under Section 2 of the Mental Health Act “because of deterioration in her mental health in June this year”, said Nageena Khalique QC, who gave a very helpful oral summary at the start, which enabled us to understand the background of the application to court:
“RO has a troubled history and involvement with psychiatric services since age 14. The reason for detention is a working diagnosis of two types of mental health disorders – Emotionally Unstable Personality Disorder (EUPD) and Dissocial personality disorder – and some evidence of behavioural disorders due to drug use (alcohol, morphine, and heroin). … RO has a long history of being violent to mental health professionals and she is banned from many NHS Trusts. KCH was the hospital which had previously banned her for assaulting staff but given she is in the locality of this Trust and they have a duty to provide care, KCH has relinquished the ban to allow her to access obstetric services.
She has a diagnosis of sickle cell disease, which has an impact on obstetric care. In April 2022 she had a pulmonary embolism requiring treatment (anti-coagulant therapy). On 28th June 2022 she was admitted … with vaginal bleeding and during admission her mental health deteriorated, and SLaM liaison services assessment led to her being detained with aggressive and chaotic behaviour. The consultant who has provided evidence in relation to that detention is [Dr X] and for current and past psychiatric care. She is currently at KCH on the labour ward with psychiatric support from mental health nurses and psychiatry. She will remain there until the birth of her child. … One of the most significant changes in her presentation developed at 34 weeks of pregnancy. A growth ultrasound revealed a diagnosis of intrauterine growth restriction – the unborn child was below the 5th percentile. At a scan repeated at 35 weeks and 6 days, unfortunately growth of the foetus was even more restricted at the 3rd percentile. The likely cause is placental insufficiency. The recommendation is that delivery is consistent with [lost this next bit] …. gold standard is that delivery should be at 37 weeks. [Consultant obstetrician] can give more evidence. [She] conducted the capacity assessment with the psychiatrist and has been involved for some time.” (Nageena Khalique QC)
KCH is seeking authorisation for a planned caesarian section for RO at 37 weeks. RO was on the video-call at the start of the hearing and then again after the break, when she spoke to HHJ Morgan.
Capacity and Best Interests, by Claire Martin
The position statement (kindly provided by counsel) for the applicant NHS Trust stated that an issue for the case was whether RO lacked capacity to make specific decisions.
The first thing that was evident at this hearing was that all parties, including the Official Solicitor (OS), seemed to agree that RO lacked capacity to make her own healthcare decisions. No evidence was examined in relation to capacity during the hearing, so I assumed that this had been discussed between parties beforehand and that it had been decided that an independent capacity assessment was not necessary. We as observers do not see the ‘bundle’ of evidence that is prepared for the court.
The position statement went on to assert that RO lacked capacity to decide her “birth planning, mode of delivery and obstetric care”, because of “an impairment of, or a disturbance in the functioning of, the mind or brain (namely (a) Dissocial Personality Disorder (F60.2) and (b) Emotionally Unstable Personality Disorder- Impulsive Type (F60.30) (s2 MCA diagnostic test) which renders her unable to understand, retain and/or weigh up the salient information (s3 functional test and causal nexus).” This was based on a capacity assessment to make these decisions, carried out by RO’s psychiatrist and consultant obstetrician.
This conclusion clearly did not accord with RO’s own view. She had been listening to the hearing (without her camera on, and from the hospital) from the start. When her consultant obstetrician had been sworn in and counsel spoke to her, RO interrupted as follows:
Nageena Khalique QC [to consultant obstetrician]: I want to ask you about the risks that face RO if she doesn’t undergo a C-section. There are risks associated with intrauterine growth restriction (IUGR) and pulmonary embolism. Could you explain to court how you would quantify those risks and what they mean in terms of clinical management?
RO: [interrupting] …. I am aware of the risk that comes with it – you keep repeating it …. The issue is that I chose a different option, that doesn’t mean I don’t understand … You keep taking it like that … once more, I understand, I get it, I also understand why you want to use it … just putting it out there because you keep repeating yourself … it’s not gonna change … I have explained why and I do so appropriately … you constantly go over the same thing over and over again ….
Judge: I’m going to ask you please to wait until it’s the moment for you to speak. I understand you have heard from the doctors but I haven’t yet.
RO: I apologise for butting in.
Judge: Would you mind whilst she gives her evidence not to butt in?
RO: This is the first time I have spoken and I’m sorry for cutting her off.
Judge: Let me hear it for the first time. I do need to listen to it. [Doctor] could you carry on? You were asked to quantify the different risks there are.
I (Claire) observed a different case (about capacity to decide about amputation and best interests) some time ago which has parallels here:
“It suddenly struck me that ZA, who is currently in hospital with a delirium and infected bones of her foot, is, seemingly, being held to a much higher bar than the rest of us would be (when our capacity is not in question) in terms of needing to demonstrate an understanding….”
It struck me again, that the bar at which capacity is considered to be retained regarding the decision to opt for a vaginal delivery, with the risks associated in this case, seems higher than it might otherwise be for people for whom capacity is not in question. As soon as capacity is deemed to have been lost, the freedom to make (what others consider to be) an ‘unwise’ decision is also lost. It becomes a best interests decision that belongs to others (in this case the doctor and judge). The question then is how much weight to give to P’s wishes and feelings, as Lady Hale described in Aintree University Hospitals NHS Foundation Trust v James  UKSC 67 “The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want.”
Conrad Hallin explained that “The OS’ principal concern is just because RO is described as articulate and intelligent – she trained as a nurse. We have had it explained to our satisfaction as to why she doesn’t have capacity, nevertheless it is her wish to have a vaginal delivery, and this could be made clearer about why not.”
RO was said to have previously – and recently – expressed her capacitous wishes:
Conrad Hallin: If we look at what the hospital thought was possible for her. …. A witness statement of Dr X on the 8th July, we can see here she was thought to have capacity at that stage. Of note …. [it said] that there is a ‘likely need to induce labour’. Why is it that induction was considered, notwithstanding her history of difficulty with professionals, but now no longer?
Obstetrician: Her instability, agitation and distress. We have all reflected on that. Her anger has escalated. Prior to this, we thought about an induction. At the moment I don’t think she would cope with how agitated she gets.
I wondered what happened in between, that RO is now assessed as lacking capacity to make this decision. And what had happened in her interactions with health care professionals that their view of a possible induction had now been ruled out.
In her final submissions, Nageena Khalique QC said:
There are many references to observations made by clinicians, and leading up to her admission, where capacity around treatment and decisions she was having to make (including Sickle Cell Disease and interventions) were recorded. For example [there was] reference to her capacity being considered when asked about … consent to pain relief, and to agreement to scans and tests and treatment for anxiety or depression. It was a blanket over the eyes of those looking after her. As you’ve just heard, she’s an intelligent and articulate young lady. There was a critical point at the end of June, [when RO was] deteriorating mentally. There was no evidence prior to this that she was unable to make decisions – albeit that she was difficult to manage. And you can’t assume lack of capacity because of that. Just prior to the end of June she made unwise decisions. At the end of June there was a change, the 28th June, where her mother mentioned that she was ‘not in her right mind’. Then on 5th July she was transferred to SLaM PICU [psychiatric intensive care unit]. That fed into the rather worrying responses when asked about mode of delivery. It led to a full capacity assessment. When one looks at the context and background and then accelerated deterioration from the beginning of this month – the Trust should not be unduly criticised for bringing this case so late and with little notice to the court and OS. Events have taken place quickly around mental health and mental capacity and the findings of the IUGR scans which RO had great difficulty understanding that led to the suggestion of an elective c-section. It has been a complex and evolving picture, and relatively recently, the falling off of capacity around about the 12th July. (Nageena Khalique QC)
This sentence really hit me: “There was no evidence prior to this that she was unable to make decisions”. It seems RO was not thought to have lacked capacity for decisions (seemingly any decisions) until the 12th July, six days before the hearing. She was said (by Conrad Hallin, above) to have been assessed to retain capacityto make birth plan decisions only ten days prior to this hearing, on 8th July. The reasons submitted for now lacking capacity were “(Dissocial Personality Disorder (F60.2) and (b) Emotionally Unstable Personality Disorder- Impulsive Type (F60.30)” [Position Statement of applicant Trust and Second respondent]. What seems to have happened between 8th and 12th July is that RO has been given a ‘working’ Personality Disorder diagnosis. This feels uncomfortable to me. RO had made her wishes known about her birth plan at a time she was deemed to retain capacity. The treating team did not agree with her decision and four days later she was deemed to lack capacity for that decision. Had RO made an Advance Decision to Refuse Treatment when she was deemed to have capacity for birth plan decisions, this would (legally) have had to have been respected by her treating team.
Given that it seemed agreed (except by RO herself) that RO lacks capacity to make her own decision about whether or not to have a caesarean section, the question before the court was whether it was in her best interests to have one.
The position taken by RO’s litigation friend at this hearing, the Official Solicitor, was to support the orders sought by the NHS Trust, i.e. that it’s in RO’s best interests to have a caesarean section. Clearly that isn’t what RO wants for herself. Her legal representative is making a case to the court that is opposite to what she wants.
Alex Ruck Keene QC describes a similar case here, where the mother wanted a natural birth:
“… the Official Solicitor as C’s litigation friend explored less interventionist procedures for the birth, after which he did not oppose the orders sought.
We mention this case as another clear example of the tension between P’s wishes and feelings and the position advocated on P’s behalf. The current practice in the Court of Protection looks to the litigation friend not to represent P in any conventional sense but to instead identify and relay P’s wishes and feelings, investigate and assess the available options, and present what the litigation friend considers to be in P’s best interests. In this case, it was to agree to a treatment plan which contradicted P’s position and not to oppose the application.
As a result, we would suggest, P’s wishes and feelings are not being given full effect to by those representing – as opposed to those ‘re-presenting’ – P. The history of the litigation friend is a long, tortuous and curious one and is in need of reform.” [my emphases]
The published judgment in the case Alex Ruck Keene is writing about can be found here.
Cross-questioning of RO’s consultant obstetrician focussed on the risks to RO and her unborn baby:
Conrad Hallin: Briefly if you had a mother with capacity who wanted to have a vaginal birth, and you advised that the baby was IUGR, and 77 in 100,000 would be still born, and she wanted vaginal birth, you’d respect that?
Obstetrician: We would suggest 37 weeks delivery. If she chose vaginal birth we’d respect that.
CH: Paragraph 36 at the top, you set out the risks of vaginal delivery. You describe sickle cell disease (SCD) and anti-coagulant [treatment] for pulmonary embolism. Still birth is only associated with IUGR. Figures say IUGR at 39 weeks would be less than 1% risk (0.77%). Could you assist the court in relation to IUGR risk?
Obs: The study would suggest 2% … plus other risks
CH: The best you can estimate is 2% plus a bit?
CH: So, a serious risk, but 97% chance it wouldn’t happen.
Obs: If you asked most mothers they wouldn’t take that risk.
I don’t have any knowledge at all of SCD and pregnancy, and of course RO had other physical health issues too (pulmonary embolism and was on anti-coagulant medication) and her unborn baby was very small as a result of SCD (at the time of the hearing birth weight was estimated, via ultrasound, to be 3rd percentile). Conrad Hallin (above) clarified that it is the IUGR (which for RO was as a result of SCD) that is associated with stillbirth (at a 0.77% risk at 39 weeks’ pregnant). The obstetrician and her team clearly had to consider the matrix of risks for RO and her baby, and communicate them effectively to RO.
This 2014 study, looking at SCD and pregnancy, found that “Pregnancy in sickle cell patients is still associated with complications.” Notably, “The physiological adaptations that occur in the circulatory, hematologic, renal, and pulmonary systems during pregnancy can overburden organs that already have chronic injuries secondary to SCD, increasing the rate of obstetric complications.”
The Royal College of Obstetricians and Gynaecologists’ (RCOG) 2011 guidance regarding birth and SCD states:
“Some older studies questioned vaginal delivery as the optimal mode of delivery for women with SCD. However, other studies demonstrating improved clinical outcomes all support vaginal delivery as the recommended mode of delivery with the need for caesarean section based on obstetric indications.” [p13]
For RO, my understanding is that it was the IUGR that was the ‘obstetric indication’ for caesarean section.
This patient information leaflet for women with SCD who are pregnant (from Imperial College Healthcare NHS Trust) states: “If you experience more frequent crises, are unwell or the baby is not growing as expected it may be advised to induce labour early.“
The evidence provided by the consultant obstetrician at the hearing clearly cautioned against induction of the baby because of “[h]er instability, agitation and distress. We have all reflected on that. Her anger has escalated. Prior to this, we thought about an induction. At the moment I don’t think she would cope with how agitated she gets.”
Finally, these 2021 British Society for Haematology guidelines add information about caesarean risk:
So, in the view of the consultant obstetrician, RO’s best interests for delivery of her baby was caesarean section ‘because of the increased obstetric complications’ and because she believed RO would not cope emotionally with induction.
In a January 2022 blog post for Open Justice Court of Protection, Samantha Halliday reported on a similar case involving the same NHS Trust. This involved a very vulnerable young woman (JK) with Foetal Alcohol Syndrome. Whilst the details of that case differ, there are notable similarities:
Like so many of its predecessors, this case was framed as urgent. But JK was not due to give birth imminently – she was 36 weeks pregnant and so birth would normally have been expected in around four weeks. What was imminent was the caesarean that had been scheduled for her in two days’ time. Evidence was not provided at the hearing that the caesarean was immediately necessary, although the clinical evidence was that it would be dangerous for JK to give birth outside a medical setting, both for herself and the foetus, and that an emergency caesarean would be the most dangerous option of all. Nevertheless, that an order might be necessary in this case was foreseeable, that JK would need support was foreseeable; the risk of JK disengaging from antenatal care and deciding to deliver in secret, without medical support was all too apparent as long ago as August. This case should not have been allowed to become the subject of an urgent hearing. Indeed, Katie Gollop QC reported that the Official Solicitor is in something approaching a state of despair about pregnancies such as JK’s. She pointed out that “It is a tragedy that those who most deserve the most skilful, time intensive, patient, relationship-building, multi-disciplinary attention that the NHS can provide find themselves deprived of that consideration because of medical delay.” (Samantha Halliday: Capacity and elective caesarean)
In this case, Nageena Khalique QC, in her final submissions, said “It is important that I address the timing of the application” to which HHJ Morgan replied “Yes I will need some help with that.” Due to what she described (see above) as “a complex and evolving picture” she argued that the Trust should not be “unduly criticised for bringing this case so late”.
Samantha Halliday noted [about the same applicant Trust] that “[a]t the request of the Official Solicitor, the judge agreed to include a recital to the order recording that the Trust has provided an assurance that the director of governance will be issuing a revised policy and some Mental Capacity Act training to staff in the hope that this might send out a message to other Trusts that there is a need to identify such cases as early as possible and to avoid the recurring situation whereby action is taken too late to facilitate support for the individual and proper representation of their interests.” (Samantha Halliday: Capacity and elective caesarean)
This case for RO might not be seen to have held the same predictability, especially given that RO had been deemed to retain capacity until very recently. However, we know that she had been banned from several NHS Trusts for assaults on staff and had been seen by mental health services from the age of 14. Sir Jonathan Cohen is quoted by Samantha Halliday from her observations of the case of JK, as taking a long view in relation to the predictability and the need for good planning: “I particularly refer to the long term diagnosis … about her cognitive ability and the other aspects of her psychiatric make up…”
There have been earlier precedents too, where Trusts have been told to get cases to court earlier in a woman’s pregnancy. This example, again from Samantha Halliday’s blog:
This is not a novel suggestion, guidance was issued by Keehan J in NHS Trust & Ors v FG  EWCOP 30 emphasising that “Urgent applications … must be limited to those rare and few cases where a genuine medical emergency has arisen and an immediate court order is necessary. I do not consider a failure to plan appropriately and/or a failure to identify a case where an application to the court may be required constitutes a genuine medical emergency.” It would appear that this message has not yet got through… (Samantha Halliday: Capacity and elective caesarean)
And finally, the RCOG guidelines (as above) do warn [p8] “A number of studies suggest that women with SCD are at risk of fetal growth restriction as well as pre-eclampsia. Serial growth scans allow early detection of fetal growth restriction and hence aid appropriate timing of delivery to reduce perinatal mortality and morbidity.”
Taking all of this in the round – especially the fact that services have clearly struggled to build safe, containing relationships with RO over time (leading to her being banned) – one could perhaps have predicted that all might not run smoothly, especially should she start to make decisions that clinicians deemed unwise. I would be interested to know, for example, whether there are documented conversations with RO early on in her pregnancy about the (predictable) IUGR risk for her baby, and what might be recommended to her, should different scenarios pan out, and what her views were about that, and her capacity at that time (if it were a concern). It is interesting to me, that, at the time RO did express wishes that concerned clinicians “working diagnoses of two types of mental disorders” (Nageena Khalique QC) were given to her.
Later in the hearing (after the lunch break), RO re-joined the hearing to speak to HHJ Morgan (she had left after the first encounter). She initially talked about her experiences on the psychiatric ward in SLaM saying “The situation … please excuse me if I get things wrong …. I basically am on Section 2 …. I believe it was Section 5 when I first came into hospital, and just before it ended it was quickly changed to Section 2 which I believe is up to 28 days. I was in the psych ward and I quickly learned I would struggle there – not because of fear it was simply because I noted that there weren’t many facilities or monitoring for my unborn child or to keep an eye”. The judge wished to move RO on to the specific issue before the court, the proposed caesarean section, rather than focus on what had happened previously:
Judge: Is there anything particularly about the c-section the doctors say that they would like you to have?
RO: In terms of the c-section …. something was up with the placenta …. I have sickle cell disease and I was worried about the hygiene. I don’t want to be in a place like that and be pregnant [referring to the PICU unit in the mental health hospital]. Now in terms of performing the c-section – a couple of weeks ago – I had a similar situation – in [different hospital Trust] they said the same thing, we’re going to have to give you a c-section. I want to experience my pregnancy and labour with my partner. However, I was then released … and told to come back if I needed to. I left. When I went for a scan, they said they were surprised at how much weight my child had gained. So, after that I mentioned this to the doctors and nurses at KCH, that I had already been through that. I’m not putting my baby in danger, or myself. I want to have the opportunity – that chance to, I am all about negotiating, this is my first baby I don’t want to kill my baby, that is the last thing I want to do. [Other hospital Trust] have given me the opportunity – but KCH have refused to. I felt like I was put in a place where I was treated like a child. I wasn’t given the opportunity to be a part of my experience with giving birth to my first child, snatched from me by c-section. That is why I want my baby to see my face first when she comes out. I don’t want that experience taken away where I don’t get to enjoy that moment in time and I believe it will. They will have to provide some form of sedation …. I won’t be able to really know what’s going on and see what’s happening and I want that experience. I want the skin to skin and everything else. ….. I know I‘ve been rambling for a while so I am going to shut up and let somebody else speak.
J: I think you can’t see us – thank you for speaking to me and telling me your views. The most striking thing you have said to me is that one of your main reasons for not agreeing is that you want your baby to see your face first – is that right?
RO: Well – yeah to an extent- but not the entire thing. It’s not just that ….
J: But an important thing ….
RO: Yes .. but wouldn’t any mother? …. I am kind of confused.
J: Mr Hallin …. RO has given me a clear idea of why these things are so important. I propose now to hear submissions from you and Miss Khalique.
That was the extent of RO’s contribution to the hearing. When she spoke on this second occasion, she sounded very sleepy and as if she were trying to understand the process of what had happened to her and what was being said at the hearing. The sense I made of it was that she understood that she had been deemed capacitous to make decisions about the birth at an earlier stage [which we have seen earlier is true from Conrad Hallin’s cross-questioning of the consultant obstetrician] and had been allowed home from [a different] hospital. Nageena Khalique QC had said earlier that RO had had to be readmitted to hospital with bleeding, which then led to her current situation. The IUGR had then been discovered and the risks had therefore changed. It was these new risks that the applicant Trust was submitting RO did not understand and was unable to retain and weigh up in a decision.
An exchange between counsel for the OS and the consultant obstetrician illuminates these issues:
Conrad Hallin: If we look at what the hospital thought was possible for her. The record is mostly transcribed … the witness statement of [psychiatrist] on the 8th July. We can see here she was thought to have capacity at that stage. Of note is the likely need to induce labour. Why is it that induction was considered, notwithstanding her history of difficulty with professionals, but now no longer?
Obstetrician: Her instability, agitation and distress. We have all reflected on that. Her anger has escalated. Prior to this, we thought about an induction. At the moment I don’t think she would cope with how agitated she gets.
CH: Of course, she’s not asked for induction. There is a cohort with her conditions who would opt for and receive a vaginal delivery, isn’t there?
Obs: Yes, she could have a vaginal birth. RO is interesting in the fact that she tells us she wants a safe baby. The two things don’t go together.
CH: So, you say they contradict. In the first Position Statement, the application said general anaesthetic. Now the Position Statement says spinal anaesthesia, which requires a degree of cooperation. The question that follows is … is it not plausible, given 3% risk – to allow for that to be attempted and then to intervene?
Obs: It took me about an hour and a half on Thursday to [do the] ultrasound. An emergency c-section would need to be quicker. I cannot see her cooperating, she’d need pre-meds, lines in, a catheter, continual monitoring, going to theatre very quickly. I can’t see that happening.
CH: You have already planned for an emergency c-section though … you’d need to do that anyway?
Obs: Yes, there is a plan that if she goes into labour we would do it in the safest way possible.
CH: So, the question is the same. You have planned for it. Is your view that if you allow her to try to do what she wants to do, let’s assume she doesn’t need an emergency c-section (which is likely on the statistics) why is there a prospect of that not going well?
Obs: If we wait … there’s a risk of still birth and risk to her mental health or SCD crisis during that time.
CH: Yes, they’re risks but they’re small risks. If the court decides her wishes are important … these risks are unlikely to eventuate. If she doesn’t need induction and all medical interventions, why couldn’t she deliver vaginally?
Obs: Some women do. Most first deliveries are not like that. You need to listen to the midwife about when to push. You need continuous monitoring. It’s more likely to cause distress to her.
CH: Understood. There are risks to doing an elective c-section as well? Higher because of her conditions. We haven’t discussed these yet. Your statement – p 54 – described risks uncommon to all mothers, risks for future pregnancies as well. The last paragraph “increased risk from c-section compared to others – SCD, and anti-coagulant for pulmonary embolism”. So bleeding is not that uncommon during c-section?
Obs: It’s not uncommon and given SCD would be more common. The advantage of an elective c-section is we can time her anti-coagulant, to be as low as it can be. Least unsafe is an emergency c-section, given her SCD and anti-coagulant.
All of this made sense to me – the clinical team was trying to weigh up all the risks and minimise as many as possible, both for RO and her baby. Their plan for a caesarean section was not, however, what RO wanted for herself. At the same time, RO was very clear that she did not want to ‘kill’ her baby and a priority was for her baby to see her face first, and have skin-to-skin contact. What RO wants, though, might not be as straightforward as she may think it is, given that she wants a ‘safe’ delivery and a live baby.
I kept wondering though, how I would react if, as RO stated, it felt to me as if I were being ‘treated like a child’ and ‘the issue is that I chose a different option, that doesn’t mean I don’t understand’. I was pleased (at the end of the hearing) that HHJ Morgan directed the order to be referred to as a ‘planned’ caesarean section, rather than ‘elective’, recognising that there was nothing ‘elective’ about what was about to happen to RO.
I felt very sad for RO throughout this hearing. She seemed to be trying to join in meaningfully with the process – but was struggling. I don’t know whether she did or did not understand the risks and potential complications for the birth of her baby, and for herself, but I did think that she had been rather cut off when she was trying to explain why she wanted a natural birth.
At the very end we heard that RO’s baby will be removed from her at birth. It made me think that the clinicians might (unconsciously) have minimised the relevance of RO’s own feelings and wishes because they knew that the baby would be taken away from her. Could any of us be pulled into thinking that this should not, therefore, be her decision to make anyway? I suppose it was this feeling throughout that niggled away at me – RO did not really seem important in this case: the OS was not asking for an independent capacity assessment (there was still time), had been given hardly any time to respond anyway (given the urgent application), and did not oppose the application for a planned caesarean section. Then RO herself struggled to join in and (I thought) was given very little time to speak (compared to other Ps in hearings I have observed). Even if she lacks capacity for the decision and it is in RO’s best interests to have a caesarean section, I felt so sad for this young woman who seemed to be at odds with everyone in her world, had lost bodily autonomy, was going to have her baby taken away at birth and now wasn’t really included in this hearing about her own birth experience – when she was not ‘agitated and distressed’ and could speak and listen.
My reflections as a first-time observer, and some thoughts on the mental health diagnoses given to RO, by Laura Room
This was my first time observing a Court of Protection case. My supervisor, Claire Martin, had passionately told me about several cases she had observed as a member of the core group of the Open Justice Court of Protection Project, and so I was very excited to be attending a hearing.
I remember feeling anxious on the morning of the hearing. I was unsure of what to expect and was also slightly overwhelmed by the procedure of applying to attend and waiting to be “let into” the hearing. However, the case we observed was fascinating, so I’m glad I sat with the anxiety and Claire persevered with ringing and emailing the court administrators to request access to what we initially thought was a vacated hearing.
After much consideration around what would be important to reflect on, I’ve decided to reflect on my observations of what I believe to be subtle judgements about the person at the centre of the case, RO.
The first of these judgments was when Conrad Hallin (CH) was questioning the Consultant Obstetrician about the risks of stillbirth. The Obstetrician said that there was around a 2-3% chance that RO would experience a stillbirth if she gave birth vaginally. The Obstetrician went on to say that “if you asked most mothers, they wouldn’t take that risk.” It seems implicit in this that RO is being described as different to “most mothers” in her wish to give birth vaginally. You could interpret this as her not being as caring as “most mothers”, or as being a bad mother for wanting to take the 2-3% risk of stillbirth. The word “most” in this quote also struck me. If the Obstetrician asked other mothers in RO’s position about their decision regarding a c-section, most of them would choose an elective c-section, although not all of them. I understand that legally RO does not have the capacity to make this decision, and she does not have an advance decision to refuse treatment. Therefore, the decision being made on her behalf in her best interests. However, it feels to me, as a person outside of the legal system, that ultimately RO’s wishes are not being respected.
CH and the Obstetrician then went on to discuss RO’s engagement with clinicians and what a c-section entails. This is when things started to click together for me here. RO’s clinical team seemed to find her uncooperative and difficult to engage and manage. Were RO’s clinical team pushing for her to have a c-section so that she was easier to manage? Did they not want to manage inducing RO and then supporting her to meaningfully engage in this process for an estimated three days? I did find it difficult to consider these questions, because I can also empathise with how the clinical team might be foreseeing needing to restrain and sedate RO if she was to be induced. Understandably, this would be traumatic for both RO and staff involved in her care.
It’s also interesting to me that RO has received working diagnoses of Dissocial Personality Disorder and Emotionally Unstable Personality Disorder – the two personality disorders that are so regularly stigmatised and viewed as “difficult” and “unmanageable”. I felt uncomfortable with the framing of RO’s personality difficulties and what I perceived as stigmatising language towards her mental health difficulties. For example, the Obstetrician said “because of her personality disorders, she has a low threshold for engaging. She creates explosive anger, which can last between 10 minutes to one hour. She has rigid thinking. I’ve never had a conversation with her where she doesn’t become angry within 20 minutes”.
The timing of being given these working diagnoses also felt quite convenient to me. I wondered if these working diagnoses were giving the clinical team a licence to suggest that RO lacked capacity and, in turn, suggest their preferred plan of how RO gave birth to HHJ Morgan? On two occasions during the hearing, the Barristers referred to RO as an intelligent and articulate young woman, even referring to her starting her nurse training in her early adulthood. For some reason, this didn’t sit right with me. I wondered if by making these statements about RO’s character, it unconsciously justified them reporting that she lacks capacity and should have a c-section?
When RO had her time to speak to HHJ Morgan and express her views, I was struck when RO said “I don’t want to kill my baby”. I was already feeling disappointed for RO throughout the hearing, but these words left me feeling extremely sad for her. Was she feeling like the clinicians involved in her care were viewing her as killing her baby?
Finally, HHJ Morgan concluded with her judgment. She requested that the c-section be called a planned c-section, rather than an elective c-section. Her reasoning being that RO is not consenting to the c-section. I felt pleased with this change in language and that HHJ Morgan was recognising that RO was not electing for the c-section to happen. However, I also quickly felt saddened again. Changing the name from elective to planned felt arbitrary to me. RO was still going to be undergoing a c-section that she did not wish to have because of, in my opinion, very reasonable reasons. To me, RO wanting “to be able to experience the birth of my first baby… for my baby to see my face first… to not be provided with some form of sedation… to be able to understand what’s going on” are very understandable reasons for wanting to have a vaginal birth.
As noted by Claire, the child protection plan and that RO’s baby would be removed from her care at birth was not mentioned until the very end of the hearing. It was also only mentioned briefly, as if not relevant to the case. I wondered if this detail played into the clinical team’s beliefs and decisions. Did they view her as unable to make a decision around birth, and believe that her feelings didn’t matter, because her baby would be taken away from her anyway? Did they see RO as not having rights as a mother because of this child protection plan?
I also felt frustrated that an urgent application was made when RO was 36 weeks pregnant. A c-section is a serious and invasive medical procedure. An urgent application only added to the pressure of decision-making. I was left wondering why an application wasn’t put forward earlier? I believe that this is a common occurrence in the Court of Protection and an understandable concern for the Judges, and only adds to the great pressure they are already working under.
Overall, watching this Court of Protection hearing was an amazing experience for me and I was captivated throughout the full five hour hearing. I am grateful that I was able to observe and reflect on an extremely important issue – making decisions about performing serious medical procedures on non-capacious people. It has given me greater insight into the legal system and the decision-making process, a perspective I don’t often see whilst working in healthcare. Observing the hearing, and writing my part of this blog with Professor Celia Kitzinger’s feedback, has been valuable for improving my legal education. I will endeavour to continue using this insight and education in my work as a Trainee Clinical Psychologist and when I qualify as a Clinical Psychologist in just over a year’s time.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin
Laura Room is a Trainee Clinical Psychologist, Tees, Esk, and Wear Valleys NHS Foundation Trust. She is on placement with Claire Martin in the Older People’s Clinical Psychology Department, Gateshead. She tweets @LRoom92
 Previous blog posts on court-ordered c-sections include: Caesarean: An emergency hearing; Capacity and elective caesarean; Elective caesarean in her best interests; An urgent court-authorised Caesarean: Seeing behind a published judgment; C-section and anaesthesia: An unexpected unified decision. We’ve also published blogs covering other court orders concerning pregnancy and mode or place of delivery, e.g. Refusing blood products during pregnancy and labour; My midwife heart weeps: Opinion on a court-ordered hospital birth; “Not nothing”? The Late Term Foetus in the Court of Protection; Re: An Expectant Mother  EWCOP 33: A lawyer’s perspective; Choice, human rights and childbirth in the Court of Protection; Human rights in maternity and the Court of Protection; Phobias, paternalism and the prevention of home birth. Agoraphobia, pregnancy and forced hospital admission: Public responses to media reports
 We are unable to audio-record the hearing and the quotes are as accurate as we are able to make them, given that we type notes during the course of observing the hearing. There are likely to be some words that have been recorded incorrectly.
 In the blog we use the psychiatric diagnostic language used by the NHS Trusts. This is not necessarily an endorsement of the use of this label for RO. There is a vast literature critically examining the concept and utility of the label ‘personality disorder’, which is beyond the scope of this blog. This statement by Recovery in the Bin posits a different perspective to that of the Trusts in this case.
 This is as required by the law, I believe. A person with capacity to make a decision is free to make whatever decision they wish (within the limits of the law) and pregnancy does not change that.
3 thoughts on “Court-authorised caesarean section for a mother with sickle cell disease who wants her baby to “see her face first””
It is hard to read this account without feeling uncomfortable about the extent to which this decision was in ROs best interests or instead in the interests of those who have been challenged in providing her care. The description of decisions made around assessment of capacity is concerning because it feels questionable as to whether she truly lacks capacity to make this decision. Assuming she does lack capacity, in the argument presented for risks around planned caesarean over induction of labour with vaginal birth it is not convincing that the caesarean confers clear and significant physical benefits for RO. The greatest benefits of this appear to be for those providing care with the ability to maintain control over RO.
Furthermore, disputing the validity of RO’s wishes for safety because of (unconvincing) concerns about the physical outcome of a vaginal birth, does not account for her need for psychological safety and control over her experience. There is no mention of the trauma likely to underlie her ‘personality disorder’ diagnosis, and how the experience of being forced to have a birth outside of her wishes will further traumatise her. The fact that her baby will not remain with her post-birth is even more reason to support her psychological safety given what lies ahead for her. I understand the worries inherent in caring for a patient who may be very ‘agitated’ during birth. It is very unfortunate that no caregiver has been able to forge a relationship with RO during pregnancy that may have made the negotiation of this complex situation acceptable for all involved. It is regrettable that should RO have any future pregnancies the legacy of this experience is likely to further compromise the potential for building caring relationships.
From Claire Martin:
Thank you Kelda for your comments. What you say is very powerful. You are right that an understanding of the likely traumatic experiences leading to RO’s patterns of engagement with services were not a feature of the hearing. It was here-and-now focused on the likely best route for a ‘safe’ delivery. The potential post-natal impact on RO was therefore not considered either, so didn’t seem to factor in a best interests decision. As you say, it’s possible that the finding of lack of capacity for this decision might well have been more in the best interests of the people caring for her. Certainly the capacity assessment was undertaken by two people who provided care, both of whom (I think I am right in saying, certainly the obstetrician) preferred a planned c-section. The capacity assessment was therefore not independent.
I feel very sad for RO… She is damned if she does and damned if she don’t. It was difficult to see any true advocacy for her at all in these proceedings. The OS did not appear to give weight to RO’s feelings in any of their statements which is part of that role within the proceedings. The judge was satisfied with the minimum participation of RO despite the observers feeling that RO had more to say. RO potentially needed more time, or another time, to express her wishes. RO seemed to be cut off. This has not sat comfortably with me as it had not with the observer. I also empathise with RO who is likely a person of African or African Caribbean heritage given SCD diagnosis and I cannot help but ask the question of what were the unseen layers on top of her psychiatric diagnosis which played out in the application being made as urgent. The observer notes “there was still time”. Clearly a highly complex evolving situation and even if the court came to the same conclusion it would seem that RO being given more time to be represented either by the OS or by RO herself would have been better justice. Thank you for sharing.